Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 160406

June 26, 2006

SPS. DOLORES MIRANDA PROVOST and JEAN PROVOST, Petitioners,

vs.
THE COURT OF APPEALS and SPS. VICTOR RAMOS and FE A. RAMOS, Respondents.
DECISION
QUISUMBING, J.:
The instant petition seeks the annulment of the Decision1 dated February 13, 2003 of the
Court of Appeals in CA-G.R. SP No. 57008 and its Resolution2 dated August 27, 2003,
denying the motion for reconsideration. The appellate court reversed the Decision 3 dated
December 10, 1999 of the Regional Trial Court (RTC) of Mambajao, Camiguin, Branch 28,
in Civil Case No. 573, which affirmed the Decision4 dated February 19, 1999 of the
Municipal Trial Court (MTC) of Mambajao, Camiguin in Civil Case No. 212.
The antecedent facts are as follows.
Private respondents, spouses Victor and Fe Ramos, are the owners of a parcel of land
surveyed as Lot No. 12542, Case 15, Cad. 473 situated in Putingbalas, Tupsan
Grande,5 Mambajao, Camiguin. The spouses lot was donated to them by Nicolasa Yap Vda.
de Abao on October 24, 1994. Adjacent to the lot is a parcel of land surveyed as Lot No.
12543, C-15, Cad. 473 owned by petitioner Dolores Miranda Provost. She bought it from
Rosario Abanil.
Sometime in May 1992, the Provosts constructed a fence separating the two lots. In 1994,
the Ramoses, believing that the Provosts encroached on a portion of their lot, demanded
the return of the encroached area but the latter refused. The Ramoses thus had a
relocation survey and the relocation survey showed that the fence was indeed on their
land.
The Provost spouses disagreed, arguing that the cadastral survey plan used had been
disapproved by the DENR Regional Office for being defective and was replaced with a
correction survey of Barangay Tupsan, Mambajao. Under the correction survey, Lot No.
12542 with an area of 4,402 square meters was surveyed as Lot No. 13436, Cad 473,

Module 2, but with a reduced area of 3,845 square meters, and Lot No. 12543 with an area
of 1,774 square meters as Lot No. 12769, Cad 473, Module 2with an increased area of
2,634 square meters. Upon request of petitioners Provosts, another relocation survey was
done using the approved cadastral survey plan. This relocation survey showed that the
fence was within petitioners property.
On December 26, 1994, the Ramos spouses filed a complaint for recovery of ownership
and possession with damages and with prayer for preliminary injunction before the MTC.
They alleged that the Provosts encroached on 314 square meters of their lot. The MTC
dismissed the complaint and held that the Ramoses failed to prove their ownership and
possession of the disputed area. On appeal, the RTC affirmed the MTC decision, stating
that the claim by the Ramoses over the property sought to be recovered was based on a
disapproved survey plan.
Private respondents appealed to the Court of Appeals. The appellate court reversed the
RTC decision and ordered the Provosts to vacate the area, remove the fence, and pay
damages, to wit:
WHEREFORE, FOREGOING PREMISES CONSIDERED, this petition is GRANTED. The
assailed Decision dated December 10, 1999 of the Regional Trial Court, Branch 28,
Mambajao, Camiguin in Civil Case No. 573 entitled, "Spouses Victor Ramos, et al. vs. Jean
Provost, et al." is reversed and set aside and in lieu thereof, another one is entered:
(a) ordering respondents to vacate and surrender the encroached area of 314
square meters to the petitioners and to remove their fence;
(b) to pay petitioners the following amounts:
(1) the amount of P6,355.82 as actual damages;
(2) the amount of P500.00 per annum as reasonable rentals of the
encroached area;
(3) the amount of P35,500.00 as attorneys fees plus P1,500.00 as traveling
expenses every hearing;
(4) the amount of P50,000.00 as moral damages;
(5) the amount of P500.00 as litigation expenses and to pay the costs of suit.
SO ORDERED.6
Hence, this petition for certiorari where petitioners argue:

1. That respondent Court of Appeals exceeded the limits of its jurisdiction in

deciding the appeal of private respondents outside of the issue raised in the
decisions of both the Municipal Trial Court and the Regional Trial Court.
2. The respondent Court of Appeals committed grave abuse of discretion amounting
to lack of jurisdiction in insisting on the technical description of the erroneous and
disapproved survey of private respondents land as the basis for its findings that
petitioners had encroached the land of respondents.
3. That the respondent Court of Appeals committed grave abuse of discretion
amounting to lack of jurisdiction in merely denying in a cavalier manner petitioners
Motion for Reconsideration as mere refutation of its own findings, without stating
the legal basis for the denial in direct violation of the provisions of the second
paragraph, of Section 14, of the 19[8]7 Constitution of the Philippines, that no
petition for review or motion for reconsideration of the court shall be refused due
course or denied without stating the legal basis [therefor].
4. That there is no appeal, or any plain, speedy and adequate remedy in the
ordinary course of law open to petitioners, except this petition for certiorari under
Rule 65, of the 1997 Rules of Civil Procedure.7
At the outset, we note that this case involves an error of judgment and not of jurisdiction.
Thus, a petition forcertiorari under Rule 65 of the Rules of Court is not proper.
Nevertheless, we shall give due course to the instant petition as one proper for review
under Rule 45.
Simply, the main issue in this case is whether petitioners (Provosts) encroached on the
property of private respondents (Ramos spouses).
Private respondents anchor their claim on the deed of donation and an old survey plan,
while petitioners base theirs on the deed of absolute sale and the corrected survey plan.
Petitioners aver that the appellate court gravely abused its discretion when it held that
they encroached upon the Ramoses property since the frontage (points 7, 8 and 9) in the
old survey plan of the Ramoses property was the same frontage in the new survey plan
and the fence was constructed at point 8 of the cadastral plan. They argue that the points
of the frontage of respondents property in the old and new survey plan are similar but
with different technical descriptions on measurements and bearings, thus the location of
the frontage in the two surveys cannot be identical. More so, under the approved survey
plan, the fence was constructed at point 9, which is point 4 of their lot and clearly within
their property. They posit that the Court of Appeals did not bother to check the technical
descriptions and instead relied on the testimony of the engineer who conducted the
relocation survey using the technical description on the disapproved survey plan. They

maintain that private respondents were unable to establish the identity of their property,
since they relied on a disapproved survey plan. Moreover, the contested area was
previously occupied by Asterio Aboc, a tenant of Rosario Abanil.
Private respondents, on their part, state that they and their predecessors-in-interest have
been in continuous and open possession as owners, as evidenced by the tax declarations
and that petitioners did not deny points 7, 8 and 9 of respondents property. They insist
that the Provosts encroached on their land as the fence was constructed at point 8.
The Court of Appeals in reversing the RTC decision reasoned that the petitioners had no
right to move the common boundary such that the area of the adjoining lot was reduced to
3,552 square meters. It further held that they could not validly claim ownership over the
area of 2,327 square meters since they bought only 1,774 square meters, and that the
correction survey plan was under protest as it would prejudice private respondents. 8
We stress that regional trial courts have jurisdiction over complaints for recovery of
ownership or accion reivindicatoria.9 Section 8, Rule 4010 of the Rules on Civil Procedure
nonetheless allows the RTC to decide the case brought on appeal from the MTC which,
even without jurisdiction over the subject matter, may decide the case on the merits. In
the instant case, the MTC of Mambajao should have dismissed the complaint outright for
lack of jurisdiction but since it decided the case on its merits, the RTC rendered a decision
based on the findings of the MTC.
Now, on the main issue, we sustain the decision of the RTC.
Significantly, the parties do not deny that a correction survey was made
in Barangay Tupsan; that the survey plan was approved on February 16, 1994; and that
the area of the private respondents property under the corrected survey plan was reduced
to 3,845 square meters, while that of petitioners was increased to 2,634 square meters.
In an action to recover under Article 43411 of the Civil Code, the claimant must (1)
establish the identity of the property sought to be recovered and (2) rely on the strength of
his title and not on the weakness of defendants claim. It is also settled rule that what
defines a piece of land is not the area, calculated with more or less certainty, mentioned in
the description but the boundaries therein laid down, as enclosing the land and indicating
its limits.12
In this case, we find that private respondents failed to identify the property they seek to
recover. They relied on the old survey plan, the technical descriptions of which did not
indicate the accurate measurements and limits of their property. The technical
descriptions under the old cadastral survey plan cannot be the basis to delineate the
boundaries of the lots or determine their respective areas for the obvious reason that it
was not approved. In fact, a relocation survey plan 13 of Lot No. 12542, attached to the

complaint as Annex "B" and presented in evidence by the petitioners as Exhibit "1", reveals
that the area of the lot is still subject to verification and final computation.
Moreover, private respondents failed to prove open, continuous and adverse possession of
the disputed area. That their predecessors-in-interest possessed the land in the concept of
owners since World War II based on the early tax declarations, is insufficient to delineate
boundaries.14 Also, they admitted that Asterio Aboc is the tenant of Rosario Abanil. 15 They
merely claimed that a portion of the land where Abocs house was once built, is part of
their property. Such claim without further proof of title does not suffice to define the
boundaries of the adjoining lots. It thus appears clearly that the contested area was part of
Abanils lot sold to petitioner Dolores Provost.
As held in Heirs of Anastacio Fabela v. Court of Appeals,16 when the records do not show
that the land subject of the action for recovery has been exactly determined, such action
cannot prosper, inasmuch as respondents ownership rights in the land claimed do not
appear satisfactorily and conclusively proven at the trial.
Considering that there is already an existing correct and approved cadastral survey plan
of Barangay Tupsan, and absent any showing that the same is erroneous, that plan
should be the basis to delineate the boundaries.
Additionally, however we find the RTCs award of actual damages for P10,000; attorneys
fees for P10,000; and litigation expenses for P5,000, without legal and factual basis; hence,
the awards must be deleted.
An award of attorneys fees and litigation expenses is proper when the court deems it just
and equitable that attorneys fees and litigation expenses should be recovered, and when
the civil action or proceeding is clearly unfounded and where defendant acted in gross and
evident bad faith. The award of attorneys fees as damages is the exception rather than the
rule. It is not to be given to the defendant every time the latter prevails. The right to litigate
is of great consequence that a penalty should not be charged on those who may exercise it
mistakenly unless, of course such party acted in bad faith. In this case, we could not
award attorneys fees and expenses of litigation in the absence of showing of gross and
evident bad faith in filing the action.17
WHEREFORE, the petition is GRANTED. The Decision dated February 13, 2003 of the
Court of Appeals and its Resolutiondated August 27, 2003 are REVERSED AND SET
ASIDE. The Decision dated December 10, 1999 of the Regional Trial Court of Mambajao,
Camiguin, Branch 28 is REINSTATED with the MODIFICATION that the award of actual
damages, litigation expenses and attorneys fees are deleted.
No pronouncement as to costs.

SO ORDERED.